RICE, C. J.

The jurisdiction of the orphans’ court, to decree a sale of land, was derived solely from our statutes, and was a special and limited jurisdiction. Its decree for a sale was a nullity, unless its record disclosed every fact essential to its jurisdiction. No intendment that it had jurisdiction to decree a sale of realty was allowable. — Bishop’s Heirs v. Hampton, 15 Ala. Rep. 761; same case, 19 Ala. 792; Wyatt v. Rambo, 29 Ala. 510.

In the case at bar, the decree of the orphans’ court of Franklin county, upon the petition of the administrator of Hugh Pettit, deceased, for the sale of section 4, in township 4, of range 13, as therein described, and all the proceedings in the suit which was commenced by that petition, are assailed for want of jurisdiction in respect to the subject-matter; and if the jurisdiction of that court *305cannot, be sustained 'under the first section of the act of 1822, there no law to sustain it. That section is in the following words: “ It shall be lawful for an administrator of any deceased intestate, or the executor of any deceased testator, who has not power by the will of the testator to sell real estate for the purpose of paying debts, or to make more equal distribution among the heirs, devisees, or legatees, to file a petition in the orphans’ court of the county in which letters of administration or letters testamentary have been granted, setting forth that the personal estate of his intestate or testator (as the case may be) is not sufficient for the payment of the just debts of such intestate or testator, or that the real estate of such testator or intestate cannot be equally, fairly, and beneficially divided among the heirs or devisees of such intestate or testator, without a sale of the real estate; setting out and particularly describing in such petition the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator,” &c. — Clay’s Digest, 224, §§ 16-22.

It is fully settled, that proceedings in the orphans’ court, under the act above cited, “ are in rem, against the estate of the decedent;” and that when the jurisdiction of that court attaches at all, it “attaches quoad the thing” — that is, uthe estate of the decedent.” — Duval’s Heirs v. Pl. and Mer. Bank, 10 Ala. 636; Matheson’s Heirs v. Hearin, 29 Ala. 210; Smith v. Smith, 13 Ala. 329.

The unavoidable sequence from these positions, and from the provisions of the above mentioned act, is, that although the jurisdiction can ne^er attach without the filing of a petition by the executor or administrator, (McCartney v. Calhoun, 11 Ala. 110, and cases cited supra;) it cannot attach even on the filing of a petition, which fails to show by its allegations that the testator or intestate of the petitioner, at the time of his death, had or owned either a legal or equitable right or interest in the real estate therein proposed to be sold — a right or interest, which, in its nature, was descendible to his heirs. Rhem v. Tull, 13 Iredell, 57; Johnson v. Collins, 12 Ala. 322; Buckmaster v. Harrop, 7 Vesey, 342; Broome v. Mouck, 10 Ala. 607.

*306In the petition filed in the orphans’ court of Franklin, for the sale of said section 4, the administrator does not directly aver that his intestate, at the time of his death, had any such right or interest in said section; but, omitting such averment, he states specially certain facts, from which he relies upon the court to draw the conclusion, that his intestate, at the time of his death, did have such right or interest in said section. If, from the facts thus stated, the conclusion of the law is, that the said intestate, at the time of his death, did have such right or interest in said section, the orphans’ court of Franklin had jurisdiction ; otherwise, it had not.

The only foundation for any such right or interest in said intestate, disclosed by the facts stated in the petition, is the contract evidenced hy the written agreement, executed on the 2d day of December, 1833, by and between him and John MeLish, of the Chickasaw nation; which agreement was made part of the petition, and a copy of which forms part of the bill in the case at bar.

The view of the contract hereinafter taken, renders it unnecessary to say anything as to the correctness of the decision in Pleasants v. Pleasants, 2 Call’s Reports, 270, cited in Alston v. Coleman, 7 Ala. 795; for, conceding that decision to be correct, it relates to the validity of the direction in a will as to personal chattels of the testator, — a direction entirely executory and contingent, looking only to the future, and not purporting to pass any interest in jprcesenti, or any interest in futuro which could conflict with the law as it existed at the time the interest was designed to pass. By no just rule can that decision be applied to a transaction or thing materially different in its nature from that which was presented for adjudication in that case.

The lands embraced by the contract now under consideration, including said section 4, constituted the reservation of said MeLish, as one of the Chickasaw nation, under the treaty entered into between that nation and the United States, on the 20th October, 1832; which provides, among other things, that the reservations selected under it “ shall be held and occupied by the Chickasaw *307people, uninterrupted, until they shall find and obtain a country suited to their wants and condition.” The treaty did not invest the reservees with the title; but, on the contrary, the treaty, and the supplementary and explanatory articles thereto, agreed upon on the 22d October, 1832, clearly prohibited each reservee from either selling or leasing his reservation. — 7 U. S. Statutes at large, 381-390; Lewis v. Love & Lane, 1 Ala. 335.

The parties to the contract were the said McLish, the Chickasaw reservee, and the said Hugh Pettit, who was not one of the Chickasaw people, but a white man and citizen of the United States. The contract was not a mere agreement on the part of McLish to sell, and on the part of Pettit to buy, for the sum of $12,800, payable as therein shown, the said reservation of McLish, in case the said treaty should thereafter be so modified “as to give to said McLish said lands in fee-simple with power to sell the same.” It was something more than that, and something in its nature different from that. The twelve thousand eight hundred dollars was all that Pettit was to pay, and all that McLish could in any event receive from him. Pettit did not agree to pay that sum in consideration of the mere agreement of McLish to sell him his reservation for that sum, in the event of the modification of the treaty as contemplated; but he agreed to pay it, and actually paid one thousand dollars of it at the time of the contract, in consideration of the agreement of McLish to sell him the reservation in the event of the modification of the treaty as comtemplated, and in further consideration of the stipulation, that “ in case there is no alteration in the treaty, the said Pettit has the use and benefit of said plantation (the reservation, of McLish) above mentioned for two years, free of' rent.” The promise of the $12,800 by Pettit was made to induce, and did induce McLish to do two things — to-wit, to agree to sell his reservation to Pettit, if and when the treaty should be modified so as to allow it, and to give him, at the very instant the contract was made, the possession and use of the reservation, to be continued from thence for two years, even if there should be “ no alteration in the *308treaty.” The contract is clearly entire and indivisible. There were two considerations for the agreement or promise of Pettit. One of them, to-wit, that he should instantly have the possession and enjoyment, the use and benefit, of the reservation of McLish, and should continue to have the same for two years, even if the treaty were not altered, was illegal. The transfer, in prcesenti, of the use and possession of the reservation, was in conflict with the treaty, and adverse to its policy. The contract must be held void, upon the principle, that if there be a legal and an illegal consideration for the same entire contract or promise, the whole contract is void. — Lewis v. Love & Lane, supra; Kennett v. Chambers, 14 How. (U. S. Sup. Ct.) Rep. 38; McElyea v. Hayter, 2 Porter, 148; Tennison v. Martin, 13 Ala. 21; Addison on Con. 147; Chitty on Con. (edition of 1851,) 575, 597; Collins v. Blantern, with the notes thereon, as published in 1st Smith’s Leading Cases, (edition of 1855,) marginal pages, 153-172; Shackell v. Rozier, 2 Bing. N. C. 646; Waite v. Jones, 1 Bing. N. C. 662; Howden v. Haigh, 11 Ad. & El. 1033; Booth v. Hodgson, 6 Term R. 405, 409; Fivaz v. Nicholls, 2 M., G. & S. (52 Eng. Com. Law Rep.) 500.

After the treaty was modified, as it appears to have been, it may be that Pettit and McLish could have made a new contract, similar to the one we have been considering. But nothing of that kind was done; and it is very clear that the contract we have above pronounced upon, was incapable of confirmation, because it falls within the 'influence of the general rule, that a contract which is ’void, either by a positive law, or upon principles of ’public policy, is deemed incapable of confirmation. 1 Story’s Eq. Jur. § 306; Shippey v. Eastwood, 9 Ala. 198; Boutette v. Melendy, 19 New Hamp. R. 196; Allen v. Deming, 14 New Hamp. R. 133.

As the contract was void for the reasons above stated, and was incapable of confirmation, it did not, and could not, confer upon Pettit any right or interest, either legal or equitable, to any land therein mentioned, (Camden v. Anderson, 5 Term Rep. 709; Fambro v. Gantt, 12 Ala. 298,) nor upon his administrator any authority to use the *309money or assets of the estate to pay for any land embraced by it. — Buckmaster v. Harrop, Broome v. Monck, and Johnson v. Collins, supra.

From these premises we deduce the conclusion, that it does not appear from anything contained in the petition of the administrator of Hugh Pettit, deceased, for the sale of said section 4, that the said Pettit, at the time of his death, had any right or interest, either legal or equitable, in or to any part of that section; that consequently the orphans’ court of Franklin county had no jurisdiction to order a sale of any part of said section ; that its decree for a sale of any part of the same, as well as the sale made under that decree, and the bond executed by the administrator and Carroll for the application of the proceeds of that sale, must be deemed and taken as utterly void, (“Watkins v. Basset, 3 Ala. 707,) and that the administrator and the executors of A. Barton, the surety on his general administration bond, are liable, and must be held to account in this suit, for all the moneys or assets of the estate used by the administrator in paying for said section 4, or any other land embraced by the contract between MeLish and Pettit, herein above declared void, with lawful interest thereon from the time they were so used, unless the complainants elect to relieve them from accounting in this suit in that respect, and to bring another suit for said section 4, or for the proceeds which resulted from the sale of it under the aforementioned void order of the orphans’ court. But for the proceeds of that sale, neither the administrator nor any of his sureties or their representatives can be held liable in the present suit, which, as it now stands, is a mere suit for the settlement of the adminstration of Tarver and of the estate. The proceeds of the void sale are not assets, and cannot be treated as assets.

It appears that, on the petition of the administrator, lot No. 154 in the town of Tuscumbia was sold, in 1836, for the sum of $3,155, by commissioners under an order of the orphans’ court of Franklin county, made by virtue of the act of 1822; and that the proceeds of the sale were received by the administrator. The validity of the sale *310is not questioned by the parties, but is a conceded fact in this case. The executors of A. Barton, the surety on the general administration bond, claim entire exemption from liability for the proceeds of' that sale. They base this claim to exemption upon the single ground, that the surety on the general administration bond is not liable for any part of the proceeds of land sold under a valid order of the orphans’ court. If they fail to sustain this claim to exemption, they then contend that the surety on the special bond, required by the 5th section of the act of 1822, (Clay’s Digest, 225, § 20,) is jointly liable with the surety on the general administration bond, and is, therefore, a necessary party to a suit like this.

The act of 1822 treats the petition of the administrator for the sale of land, as the commencement of a suit by him; “a proceeding in rem against the estate of the decedent,” but nevertheless a suit. — Cloud v. Barton, 13 Ala. 347; Bonner v. Greenlee, 6 Ala. 411. The object of the suit is to convert the land into money, and to put the money in his hands. It is the duty of the court to “render a final decree in the cause.” — Clay’s Digest, 225, §§ 20, 21. The court is authorized, but not imperatively required, to direct in that final decree the payment and application of the money arising from the sale. — lb. The sale, when made, is to be made by commissioners appointed by the court; and is a sale by the court, through the commissioners as its ministerial agents, over whose acts it retains a controlling power, until it has ratified them, and made a final decree. — Jennings v. Jenkins, 9 Ala. 285; Worthington v. McRoberts, 7 Ala. 297. The administrator is not to receive the proceeds of the sale, until he enters into bond, with sufficient security, (the special bond above referred to,) “conditioned for the faithful payment and application of the money arising from such sale, according to the final decree.” — Clay’s Dig. 225, § 20. If he enters into that bond, he is entitled to receive them. If he enters into that bond, and receives them, his surety on it can only be made liable for his failure to pay and apply them “ according to the final decree.” If that decree does not make or contain *311any direction as to their payment or application, as it may not and often does not, there cannot be a breach of that special bond, nor any recovery thereon. In the present case, it does not appear that “the final decree” made or contained any direction as to the payment of the proceeds of the sale of said lot No. 154; and, therefore, no breach of the special bond is shown. And as, upon the facts as presented in this case, the sureties on that bond do not appear to be liable in any way for any part of the proceeds of said lot, we must decide that they were not necessary parties.

But the condition of the general administration bond is much more comprehensive than that of the special bond: it is that the administrator “shall well and truly perform all the duties which are or may be by law required of him as such administrator.” The question as to the liability of his surety on that bond is narrowed down to this, whether it was, by law, the duty of the administrator, after the proceeds of the said lot were received by him, under the circumstances disclosed in the record, to account for them to the heirs.

Upon the death of the intestate, (Hugh Pettit,) that lot descended to his heirs, and they were instantly invested with the title. But their right or title was subject to the exercise of the statute 'power of the administrator. — Patton v. Crow, 26 Ala. 426. Conceding that, independent of our statutes, the administrator had nothing to do with the real estate of the intestate, and no power over it; yet the act of 1822, above cited, conferred upon him such power in two distinct classes of cases, to-wit: 1st, when the personal estate was insufficient to pay the debts of the intestate; 2d, when the real estate could not be equally, fairly and beneficially divided among the heirs without a sale thereof. By the assertion and exercise of that power, he, as administrator, in the mode pointed out by the act of 1822, has procured a valid and complete sale, whereby the title of the heirs to the lot is divested; and as administrator he has, under the same statute, also procured the possession of the proceeds arising from that sale. It would be strange, indeed, that a statute should *312arm the administrator with power to bring about a sale, which would destroy the title of the heirs, and put the money arising from the sale of their laud into his hands, without any liability on his part to account for that money to them! We have no statute which produces any such singular and unjust result. On the contrary, whenever the administrator, by the assertion and exercise of his statute power, has procured a valid and complete sale of land, divesting the title of the heirs, and has also obtained the moneys arising from such sale, it as as clearly his legal duty to account for such moneys, as for any assets of the estate. If he shows that they have been properly applied, or must necessarily be applied in payment of the debts of the estate, that is a sufficient accounting for them to the heirs. So, if he shows that “the final decree in the cause,” commenced by his petition, directed such moneys to be paid and applied otherwise than to the heirs, and that decree remains unreversed and of force, that may, perhaps, be a sufficient accounting for them to the heirs. But where, as here, nothing of that kind appears, the failure of the administrator to pay or account to the heirs for such moneys is a breach of the condition of his general administration bond, for which he and his sureties on that bond are liable to the heirs. — Clarke v. West 5 Ala. 117. We decide, therefore, that the executors of A. Barton, the surety on the general administration bond, are not exempt from liability to the heirs, for the proceeds of the sale of said lot 154; and that there is no error in the decree, so far as it charges them with that liability.

As to the amount (to-wit, $519 07,) mentioned in voucher No. 98, there is some doubt whether it was allowed to the administrator in the account reported by the register, as corrected by the chancellor.

Upon a careful examination of the other questions raised by the assignments of error on the part of appellants, our conclusion is, that in the decision of them by the chancellor there was no reversible error. If reasons or authorities are deemed necessary to support this conclusion, they will be found in the decree of the chancellor, *313and in the brief of the appellees’ solicitors; and we deem it unnecessary to swell this opinion by a repetition of the reasons or authorities.

There is only one cross assignment of error on the part of the complainants, James T. Pettit and others. That one raises the question, whether the chancellor should not, in his final decree rendered at the May term, 1856, have allowed interest to the complainants, from the 1st day of May, 1855 ;■ that being the day up to which the interest account, as reported by the register and confirmed by the chancellor, had been brought. It is evident from what we have decided above, that the administrator was improperly charged, in the decree of the chancellor and report of the register, with the proceeds of the sale of said section 4, and interest thereon; but that* as to all other items or matters charged against him in the report of the register, as corrected by the final decree of the chancellor, the administrator and the executors of A. Barton, the surety on his general administration bond, have no right to complain. The proceeds of the sale of said section 4, and interest thereon, should have been stricken out of the account reported by the register; but,. as all the other items and» matters charged against the administrator in the report of the register are free from any reversible error, interest in respect to them in the aggregate should have been allowed from the 1st day of May, 1855. And in not thus allowing interest, the chancellor erred.

The decree of the chancellor is reversed, so far as it relates in any manner to the proceeds of the sale of said section 4 under the void order of the orphans’ court, and so far as it interposes any obstacle to holding the administrator of Hugh Pettit, deceased, and the' executors of A. Barton, his surety on the- general administration bond, accountable and liable- in this suit, (as must be done by the chancellor, unless'waived by election, of complainants hereafter to be made,) for the moneys or 'assets of the estate used by the administrator in paying for said section 4, or for any other land embraced by the contract between said Hugh Pettitt and McLish,- with lawful interest thereon *314from the time tbey were so used; and so far as it might operate to prevent the allowance of the interest in favor of the complainants from the 1st May, 1855, in respect to the aggregate of all the items or matters charged against the administrator in the report of the register, except the proceeds of the sale of said section 4 and interest thereon; and so far as it can operate to prevent a full inquiry as to voucher 98, relating to the $519 07 above mentioned. In all other respects, the decree of the chancellor is affirmed. The cause is remanded for further proceedings not inconsistent with this opinion.

The appellees (the complainants in the original bill) must pay the costs of the appeal'taken by the appellants (the respondents in the original bill.) But the. appellants must pay the costs on the cross appeal and cross assignment of error by the complainants in the original bill.